International Law Puts Itself on Trial

United Nations institutions do not have a track record of covering themselves in glory in contemporary times. Thus it has proved once again today with the International Court of Justice issuing an interim set of rulings in the controversial South Africa-Israel case, where the latter has been accused by the former of committing genocide against the Palestinians in the Gaza Strip.

Israel and its Free World allies have clearly suffered a defeat in legal theory terms. While the key question of the trial – namely, whether Israel has violated the 1948 Genocide Convention in its war on Hamas since October 7 – will take years to determine, the Israelis had wanted the ICJ to dismiss the case outright. Countries like the USA, UK and Germany stood foursquare behind its contention that the victims of October 7 were not the prosecutors of a war of necessity rather than choice, and that South Africa’s claims were abhorrent in a conflict of self-defence.

The Court did not agree. Instead, the ICJ not only decided that the South African claim could be investigated, but then issued a provisional set of measures against Israel, as per South Africa’s request. In its most important rulings, the ICJ determined that Israel must take all measures to prevent genocide; prevent and punish genocide incitement; and allow humanitarian aid into Gaza, among others.

Of course, Israel has openly been pursuing all of these objectives already. As was made clear in Israeli deputations, the Israeli Defence Forces has acted with restraint and with warnings at every opportunity it can. Perhaps that is why the ICJ did not demand Israel halt hostilities immediately, which was a core South African demand.

But apart from this silver lining, the ruling has been largely cloud. The ICJ’s imposition of provisional measures acknowledges that certain aspects of South Africa’s case may hold merit, although the Chief Justice went to great lengths to remind that no final judgement on this should be inferred from today’s announcement.

After retiring from their talking shop deliberations to enjoy a good lunch in the civilised surroundings of The Hague, few of the Justices will doubtless spare a thought for the real world mess they have now created.

As Hamas is not a party to the ICJ, it is unclear why the ICJ thought that it should be making a ruling about a conflict where only one side is subject to its decision-making. Certainly Hamas will be paying no attention to the Court’s admonition that it should free the hostages.

Meanwhile, Israel is not able to change course in Gaza because the terrorists who rained death and destruction on Israeli civilians – and have promised to do similar again – have yet to lay down their arms or release the hostages they have taken. No democratic country could surrender to a situation like this and expect its citizens to take more notice of a bunch of robed lawyers pontificating from their chambers rather than the thugs living next door who have shown they intend to kill them. And civilian casualties will sadly continue to be a feature of this conflict simply because it is occurring in a dense urban environment where terrorists use civilian infrastructure as part of their command and control mechanisms.

The ICJ’s verdict on whether Israel violated the Genocide Convention is years away. For now, it appears that both the interim ruling and the trial may only contribute to deepening divisions globally, while eroding the standing of the ICJ as a place where the law is increasingly proving to be an ass.


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