Osama Al-Sharif
Israel is guilty of carrying out a genocidal war in Gaza. That is the judgment of millions of people around the world. Israel’s guilt has already been established in the court of international public opinion. Even so, the carnage in Gaza continues despite the unprecedented backlash. But for the first time in history, Israel will appear in the world’s highest court, the International Court of Justice, on Thursday to defend itself against an application submitted by South Africa accusing it of committing genocide in Gaza, and asking for an interim measure, a provisional ruling by the court, to cease and desist until the 15-member panel of judges makes a final adjudication.
This is a historic event. Israel has boycotted UN bodies looking into its occupation of the West Bank and Gaza Strip for decades. As a member of the UN and a signatory to its charter, it has no option but to appear in court or face the legal consequences. The fact that South Africa, whose application is now supported by a growing list of countries, chose the ICJ is interesting. Israel is not a signatory to the International Criminal Court Rome Statute and can make strong arguments to skirt a ruling. The ICC is yet to rule on a Palestinian Authority application asking for an opinion regarding Israel’s occupation of Palestinian territories. Meanwhile, all UN members are party to the ICJ statute, whose rulings are binding.
The two-day ICJ session will be open to the public. Millions around the world will certainly follow it. Some lawyers and experts will represent South Africa, a country with first-hand experience of war crimes and apartheid. Hundreds of experts from other countries, such as Chile, Bolivia, Malaysia and Jordan, will support it. Israel has chosen a British lawyer, Malcolm Shaw, to represent it. He is considered one of the world’s leading experts on international law, and teaches a course at the Hebrew University of Jerusalem as a guest lecturer every year. Israel has nominated a former High Court judge to sit in the 15-member panel, which is within its right.
While the ICC can indict individuals in cases of war crimes, genocide, ethnic cleansing, and crimes against humanity, the ICJ examines conflicts between states. Israel may waste some time arguing that the court has no business looking into Israel’s military operations in Gaza. But that is unlikely to change things. To prove that Israel is complying with international law in Gaza will be mission impossible. The ruling of this court will test its credibility.
While the ICJ has looked into numerous cases since it was established in 1945, one case of genocide stands out – the case against former Yugoslavia, Serbia and Montenegro brought by Bosnia and Herzegovina in 1996. It took the court 11 years to make a final ruling, which resulted in convictions.
What is important to note here is that the South Africa case deals with an ongoing case of genocide. Pressure is needed to have the ICJ order a halt all Israeli military activities while the court is listening to arguments by both sides and until it issues a final ruling, which could take years.
The fact that the ICJ’s ruling is binding to UN members also counts. While Israel may choose to ignore an injunction, its allies, chief among them the US, will be seen as complicit if they, too, miss the order to cease the aggression. Undoubtedly, the ICJ will be dealing with a highly explosive case. Israel will present the Oct. 7 Hamas attack as a justification for its “self-defense” operation in Gaza. But the South Africa team will rely on testimonies by neutral UN, human rights, and other NGOs, who will present irrefutable evidence that Israel’s military is carrying out what can only be defined as genocide in Gaza, where the death toll, after more than three months of aggression, stands at more than 24,000 killed, including 10,000 children, more than 100 journalists, and more than 60,000 injured, as well as more than 30 hospitals destroyed. At least 7,000 people are missing, believed dead. More than 70 percent of Gaza has been leveled.
The South Africa team will also present evidence tying Israeli officials to calls for genocide, ethnic cleansing, and war crimes. Thousands of video clips will be presented showing the deliberate razing of entire residential neighborhoods in Gaza by Israel.
An injunction halting the war is essential. It will allow independent observers, as well as the international media, to see on the ground what Israel has done in the past three months. The testimonies of tens of thousands of surviving victims will make for a horrifying record of what has taken place – and continues to happen – in the beleaguered Gaza Strip. An injunction will also allow for the entry of humanitarian aid, doctors, medics, ambulances, food, water, and medicine that could save tens of thousands of lives.
The two-day session will further expose Israeli atrocities in Gaza, but Israel will put pressure on judges to ignore the evidence. If that happens, it will greatly affect the court and its credibility.
On the other hand, if and when the ICJ makes a final ruling, the onus will be on the ICC to move. So far, the ICC’s Chief Prosecutor, Karim Khan, has said little about the carnage in Gaza. He showed stark bias in favor of Israel when he accepted an invitation to visit Israeli families who suffered in the Oct. 7 attack without doing the same in Gaza.
There is no doubt that Israel has a massive influence over Western politicians, as well as UN member states and officials. It uses antisemitism as a tool to sandbag, intimidate, and blemish those who dare stand against it. The ICJ will play out as a case where Israel, for the first time, stands as a defendant before the world’s most important court. The outcome of this case could set a precedent, opening the way for multiple cases in the future, both individually and collectively, for Israel’s victims. More importantly, a ruling in favor of South Africa will force the ICC to step in and look into what Israeli soldiers, officers, and politicians have done, or even said, to instigate what much of the rest of the world already defines as genocide.
