In 2014, shortly after the destruction and bloodshed of Operation Protective Edge, I met veteran human rights activist Raji Sourani in his office in Gaza. We spoke about the latest Gaza war and the fact that Palestine had become a state party to the International Criminal Court (ICC) just a few months earlier.
I asked Sourani, co-founder of the Palestinian Centre for Human Rights, whether he thought Palestine’s membership would make a tangible difference to the occupation and Israeli aggression in the Gaza Strip. He said he did not think so, but membership of the ICC was necessary because human rights activists have to pursue a multipronged strategy.
Upon hearing of SA’s December 29 filing of an application to the International Court of Justice (ICJ) to stop Israel from committing genocide, I was reminded of Sourani’s words. The track record of international courts, particularly the ICC and ICJ, has been less than impressive when it comes to holding war criminals and genocidaires accountable for the most grave international crimes.
The ICC, specifically, has been particularly slow and reluctant to make progress since former chief prosecutor Fatou Bensouda announced her investigation into war crimes committed by Israel in the context of the 2014 Gaza war. And the ICC has yet to hold a Western leader accountable for the commission of international crimes.
Yet SA has decided to pursue the route of international adjudication. In mid-November the country referred Israel to the ICC for an investigation into war crimes committed since the start of the current Gaza war. And at the tail end of the year it took the bold step of filing an application for provisional measures to the ICJ. Essentially, SA is asking the ICJ to immediately suspend Israel’s military operations in and against Gaza. It further asks that Israel take all reasonable steps in its power to prevent genocide.
Provisional measures are temporary measures intended to provide a remedy if there is an imminent risk that irreparable damage can be done to the rights of a party if such measures are not ordered. Such measures are usually requested in cases of exceptional urgency. For example, in January 2020 the ICJ ordered provisional measures to stop Myanmar from committing any further acts of genocide against the Rohingya.
Judging from previous international litigation involving Israeli war crimes, one does not have to be unduly pessimistic about Israel’s track record in upholding international law to predict that the prospects of such litigation achieving concrete results are slim.
What, then, is the best one can hope for in terms of the current cases against Israel? The cases present an opportunity for SA, as a member of the Global South, to assert itself not only against Israel but against the West. The sentiment in SA is that Western apathy and cowardice have allowed Israel not only to prolong the inhuman occupation but also to commit war crimes with impunity. The US, specifically, has been a long-time supporter of Israel. Since World War 2 it has given Israel more than $260bn in combined military and economic aid.
Lack of enforcement remains the achilles heel of the ICJ system. When the ICJ, in its near unanimous 2004 advisory opinion on the legality of the construction of the wall in the occupied Palestinian territory, said that Israel’s move violated international law and it should dismantle it, Israel ignored the ICJ’s request. It was no coincidence that only the American judge on the bench, Thomas Buergenthal, dissented in this case.
Should the ICJ order provisional measures, it is expected that Israel will again ignore the court’s decision. It will then be up to the UN Security Council to order Israel to comply. In the past the Security Council’s resolutions on Israel have been paralysed by the US veto, so it will be interesting to see whether it will be able to play its part in enforcing an ICJ order.
Given Prime Minister Benjamin Netanyahu’s belligerent rhetoric, a ceasefire is highly unlikely to result from an ICJ ruling against Israel. But should the ICJ rule in SA’s favour, it will mean that neither Israel nor any other member of the international community will be able to support the continued bloodshed in Gaza without challenging the principles on which the UN and the postwar international order were built.
• Swart, a visiting professor at Wits Law School specialising in human rights, international relations and international law, consulted for the UN Development Programme in Palestine in 2014 and 2015. She writes in her personal capacity.
