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International Court of Justice gets it right over Gaza, restores credibility of the global legal system

9 Feb 2024

| Author: Reweti Kohere

The International Court of Justice (ICJ) has emerged as “the last bastion” of an international legal system following its provisional decision on South Africa’s claims of genocide against Israel, according to a New Zealand humanitarian lawyer.

The hearing and the judgment attracted global attention, with coverage amplified by social media. This worldwide interest “shows still the value and importance of both international law and the ICJ, despite all the problems in the international legal system”, says Dr Marnie Lloydd, senior international law lecturer at Victoria University of Wellington. “Perhaps it is the last bastion or the only thing we have to hold on to in such harrowing circumstances.”

Other international lawyers are urging Wellington to do more to shore up the system and help shape the global community’s response to the recent escalation of armed conflict in the longrunning Israel-Palestine war. This includes by supporting any potential cases that allege war crimes.

In a highly publicised – and highly anticipated – decision by the United Nations’ principal judicial body, the ICJ on January 26 found there was a plausible case of genocide for Israel to answer over some of its actions since launching “Operation Swords of Iron” in response to Palestinian militant group Hamas’ terrorist attacks against Israel on October 7.

Under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide (the so-called Genocide Convention), the court ordered Israel to prevent all acts of genocide within its power. This includes ensuring “with immediate effect” that its military forces do not commit genocide. However, the ICJ stopped short of ordering the ceasefire that South Africa had sought. Nearly four months into the war, the death toll is estimated to have surpassed 27,000.

The ICJ, at the provisional stage, did not and could not have found that Israel has failed to prevent and punish genocide. Such a ruling on the merits of South Africa’s allegations is expected to take years. However, the court found some of the rights of Palestinians in Gaza which were in need of protection were plausible and that some of the provisional measures that South Africa had sought aimed to preserve their right to be protected from genocide.

The court also ordered Israel to immediately let humanitarian aid into Gaza in what the Red Cross has described as an “unbearable human tragedy” with freezing weather threatening the lives of nearly two million displaced people. Roughly 80% of the population faces “emergency or catastrophic food insecurity”, it said.

Across two days in January, the ICJ heard South Africa’s case and Israel’s defence. Also at issue was the court’s standing in the international community. Irish barrister Blinne Ní Ghrálaigh KC, representing South Africa, warned the credibility of the international legal system was at stake.

“The imminent risk of death, harm and destruction that Palestinians in Gaza face today, and that they risk every day during the pendency of these proceedings, on any view justifies – indeed compels – the indication of provisional measures,” Ní Ghrálaigh said. “Some might say that the very reputation of international law – its ability and willingness to bind and to protect all peoples equally – hangs in the balance.”

 

Restored credibility

The 17-person court was nearly unanimous on all six of its provisional orders. At most, there were two dissents – one from a permanent judge, Uganda’s Julia Sebutinde, who said the “essentially and historically political” dispute wasn’t legally capable of judicial intervention and the other from Israeli ad hoc judge Aharon Barak.

The court also relied heavily on information about the situation in Gaza from international bodies such as UN special rapporteurs, working groups of the UN Human Rights Council, the Commissioner-General of the UN Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) and the World Health Organization. Allegations have since emerged from Israel that UNRWA employees may have been involved in Hamas’ attacks on October 7. The UN says some of these workers have been dismissed; others are thought to be dead.

Lloydd says both features of the decision restore credibility to the international legal system, which is often criticised for lacking effective enforcement capabilities. While the ICJ’s rulings cannot be appealed, a party does have recourse to the UN Security Council should the other fail to comply. In the present case, however, any action the Security Council might take would likely be vetoed by the US, which has offered Israel diplomatic and military support.

“The international legal system and the UN in particular are coming under a lot of pressure, very strong pressure. Even though they’re imperfect, they can be improved,” Lloydd says. “But I don’t really see anything else at the moment that can really do this important work against impunity and trying to protect people.”

Auckland University Associate Professor of Law Treasa Dunworth says the court has carefully and properly “[kept] in their sandpit” in reaffirming the importance of the rule against genocide. “It would have been appalling if the court had said ‘we don’t have jurisdiction’. That would have been an abdication of responsibility.”

Crucially, the court has kept a watching brief on the conflict, by ordering Israel to report back by February 26 on all the measures it has taken to observe its obligations under the convention – a helpful provisional measure, Dunworth says. “In that sense, the court isn’t lulling about having coffee in their Peace Palace in The Hague while people are in appalling conditions.”

 

In good health

The ICJ isn’t the problem, says Waikato University Professor Alexander Gillespie. “The problem is the international order that won’t support it. If [the court] makes a judgment that goes one way or another, that’s what it is. But it’s making judgments – and we should be welcoming this because it’s better than not having that voice.”

The lack of a ceasefire order meant Israel “effectively got an amber light to continue with their action in Gaza”, Gillespie says. While Israel has been ordered to comply with the convention, including by preventing and punishing “the direct and public incitement” to commit genocide, it was not ordered to suspend military operations in the way Russia was in March 2022, in a provisional ruling by the ICJ relating to Russia’s invasion of Ukraine.

The court’s attempt to draw on international humanitarian law (IHL), in ordering Israel to enable humanitarian aid into Gaza, is “highly commendable”, Gillespie says. In a concluding comment, the court stressed that all parties to the conflict were bound by IHL, including Hamas which provoked the current confrontation by killing Israeli civilians and abducting hundreds of hostages on October 7. Gravely concerned about their fate, the court called for the hostages’ “immediate and unconditional release”.

Reports have also emerged that thousands of men, women and children in Gaza have been detained by Israeli forces and held in “horrific” conditions, which the UN Human Rights Office has said might amount to torture.

Gillespie says the court could have stuck to the convention but it didn’t. “They can clearly see that this conflict has got a lot of problems and they’re trying to point towards other solutions rather than just [sticking to] the topic they were given.”

 

Pick up the ball

The court’s emphasis on IHL is where New Zealand could offer the most support, Gillespie suggests. One of South Africa’s mistakes in going “for a knockout blow” by arguing genocide is that it has pushed to one side myriad other alleged IHL violations such as hostage-taking, murder, sexual violence, attacks on hospitals, schools and places of worship and restricting humanitarian aid – crimes that are regulated by the 1949 Geneva Convention on the Protection of Civilians in Times of War.

Gillespie says the ICJ has already ruled that Israel is bound by these treaty obligations within its occupied territories on the West Bank and argues another country should “pick up that ball and run with it.

“I’m not saying we should take the lead, but we should support because we talk the rhetoric of international humanitarian law and its importance and it would be good to test it in a way that all actors in that conflict are held to account. Not just one side or the other, but everyone because it’s just a collection of terrible atrocities.”

Lloydd adds that over the coming weeks and months, the urgency with which more humanitarian aid can reach Gaza will be critical. Under the convention, states must not only punish genocide, but prevent it from happening in the first place. “This idea of prevention is very concrete”, she says. “We can criticise the law for being black and white on the books, but actually this links in a very grounded way to practical steps that need to be taken to make sure people can actually survive in terms of their basic needs.”

 

Political discomfort

Dunworth says New Zealand should call on all parties to the conflict to comply with IHL. “As a political statement, we can go much wider than the court [can] because the court is constrained by its sandpit. We’re not.”

To date, the New Zealand government has issued two official statements on the conflict, both of which came before South Africa filed its case on December 23. Foreign Affairs Minister Winston Peters on December 1 called on “all parties involved in the conflict, as well as countries with influence in the region, to work urgently towards a long-term ceasefire”.

Peters reiterated New Zealand’s “unequivocal” condemnation of Hamas’ “terrorist attack” and its “consistent support” of Israel’s right to self-defence. All remaining hostages must be released and all sides must observe IHL, he said.

Two weeks later, Prime Minister Christopher Luxon joined his Australian and Canadian counterparts, Anthony Albanese and Justin Trudeau, in releasing a statement reaffirming many of Peters’ earlier points. The leaders said they were alarmed at the diminishing safe space for civilians in Gaza. “The price of defeating Hamas cannot be the continuous suffering of all Palestinian civilians,” they said, adding that the safe and unimpeded access to humanitarian assistance must be “increased and sustained”.

Since then, however, the New Zealand government has been silent. It hasn’t released an official statement in response to South Africa’s complaint or the ICJ’s provisional ruling. The closest it has come to commenting on the case was at the end of January, when Luxon was forced to correct Hansard after mistakenly saying the ICJ did not find a plausible risk of genocide.

As a party to the Geneva Convention, a member of the UN and a participant in the rules-based international order, New Zealand has legal obligations to ensure compliance with and respect for these international rules, Dunworth says. “These are not foreign policy choices that the government can make. They’re actually international obligations of New Zealand. Therefore, this is New Zealand’s gig. We have willingly taken on board these obligations and they work for us. And now, here’s something that might make us a little politically uncomfortable, but we actually have a legal obligation to defend that order.”

 

A very high bar

Genocide is sometimes described as “the crime of crimes”, Lloydd says, given the gravity of alleging a state has committed certain criminal acts “with intent to destroy, in whole or in part, a national, ethnical, racial or religious group”. Three elements comprise the charge as set out in article two of the Genocide Convention:

  • the commission of certain acts, such as killing members of the group, causing them serious bodily or mental harm, creating conditions calculated to destroy them, preventing births, or forcibly transferring children to other groups;
  • the targeting of a protected group; and
  • the intent to commit genocide in order to destroy members of the protected group.

Lloydd says the court’s jurisprudence has set a very high bar for finding genocide. “Some of the expert commentary I’ve seen suggests that it would probably be very hard for South Africa to successfully demonstrate genocide, particularly around proving the necessary intent.” Dunworth adds: “It would be really inappropriate if the judges sat there and listened to South Africa for four hours one day, Israel for four hours the next day and then made a decision on [the merits]. If we had a dispute about roofing on an apartment building, we’d spend longer.” “This is an urgent proceeding because, otherwise, in a-year and-a-half, there’ll be no Palestinians left.”

 

Law is symbolic

Describing the ruling as a “stinging rebuke” to Israel, The Economist nevertheless said it was “largely symbolic” as the court failed to order a ceasefire. Dunworth agrees the ruling is a stinging rebuke, but says she “categorically rejects” any suggestion that the decision should be dismissed as symbolic. “Isn’t all law symbolic?” She cites the example of why someone might choose not to drive after drinking alcohol. “It isn’t because we’re going to end up in prison or get the death penalty. It’s because, somehow, in a way that lawyers haven’t figured out, we have internalised that rule as right and proper. We want to be part of our community,” she says.

“What The Economist would have the International court say [is] ‘we’d only be making a symbolic statement’. Does that mean we can never change anything by symbols? We know that we can. The swastika is an example – it’s symbolic of hate and racism…To dismiss [the ruling] as symbolic is just wrong. It’s just wrong because symbols matter.”

People around the world are “just aghast and heartbroken”, says Lloydd, whose work experience includes representing the International Committee of the Red Cross in Sri Lanka, Afghanistan and the Middle East, in particular Israel and the Occupied Territories. “I’ve worked in a lot of war zones and this seems the worst ever in terms of a humanitarian situation.”

Genocide is “the most serious crime that humans can do to one another. Nothing trumps it”, Gillespie says. “There’s 2.3 million people right now, 85% of whom are displaced and we’re in a situation of potential crimes of war, famine and other atrocities and we become lost in all this other detail. But we need the detail.” ■

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