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What consequence could a 'genocide' ruling by the ICJ have on Israel and the war in Gaza?

ICJ can’t enforce verdicts - but could put enormous diplomatic pressure on Israel

Pro-Palestinian protesters gather near the International Court of Justice (ICJ), on the day judges hear a request for emergency measures by South Africa to order Israel to stop its military actions in Gaza, in The Hague, Netherlands Jan. 12, 2024. REUTERS/Thilo Schmuelgen

After South Africa accused Israel of committing genocide against Palestinians in the war against the Hamas terrorists in Gaza, over the past weekend, both sides made their case in front of the panel of 15 judges at the International Court of Justice in The Hague, Netherlands.

Now Israel, South Africa, and the world are awaiting a decision by the so-called ‘World Court’ – but what exactly is this court and what would be the consequences for Israel in the case of a decision against the Jewish state?

The International Court of Justice (ICJ) was established as one of the United Nations' six principal bodies in 1945, shortly after World War II.

Its purpose is to adjudicate general disputes between countries based on international law, for which the court’s rulings and opinions are one of the major sources.

Genocide, generally taken to mean a deliberate attempt to erase a people group, was made a crime in 1948, the same year the State of Israel was created, under the direct influence of the increasing understanding of the horrors of the Holocaust.

The term itself was coined by Jewish lawyer and Holocaust survivor Raphael Lemkin, specifically to describe the Nazi's attempt to systematically erase the Jewish people, making the accusations against Israel especially galling.

When deliberating on possible consequences of a ruling against Israel, a look at precedents at the ICJ can be helpful.

South Africa’s lawsuit isn’t the first of its kind being adjudicated at the World Court, as just two years ago, the court ruled on a claim of genocide against Russia in its war against Ukraine.

In 2022, Ukraine claimed that Russia had violated the 1948 Genocide Convention by using a false claim of genocide as a pretext for launching its invasion into Ukraine.

Like South Africa today, Ukraine asked for an expedited provisional ruling to halt the fighting while the court continued its deliberations, which continue to this day.

Therefore court ordered Russia to “immediately suspend the military operations” but the Russian government simply ignored the ruling.

Despite the court’s rulings being legally binding for all 193 UN member states, it has no enforcement mechanisms. Only the UN Security Council could vote to enforce a ruling, by force if necessary, but each of its members can veto such a decision.

Most experts agree that a court ruling against Israel wouldn’t force it to stop the fighting immediately, but could have negative diplomatic consequences.

Juliette McIntyre, a law lecturer at the University of South Australia specializing in international courts and tribunals, told the Washington Post she would be surprised if the court issued a similar order against Israel as it did to Russia.

“I think we are likely to see a much more nuanced order relating to ensuring that aid, water, etc. is allowed into Gaza and that Israel has to uphold its commitments,” she wrote.

“In addition to the lawsuit, [South Africa] simultaneously requested an interim order forcing Israel to stop fighting. It also made possible other options as part of its requests, for example in order to prevent hunger. This is the central and immediate threat,” Dr. Tami Kenner, coordinator of the Law and Security Program at the Institute for National Security Studies explained on 103FM Radio.

“The verdict on the legal question regarding genocide or not likely will not be given in the next two years. But an interim order, that’s the issue that is Israel’s main goal right now.”

“If it is granted, it should be as limited and restricted as possible, and certainly not in order to stop the fighting before we have succeeded in achieving its goals of the fighting,” Kenner said.

If the court issues an interim order against Israel to increase civilian aid in Gaza, the Biden administration which has been pushing Israel to minimize harm to civilians could use this as cover and leverage the ruling for a renewed push “without being perceived as backing down against Hamas,” McIntyre said.

By the act of appearing in front of the court, itself a highly unusual act by the Jewish State which generally ignores politically motivated lawsuits against its conduct at the UN, Israel has accepted the ICJ’s legitimacy, McIntyre added.

This “will make it more difficult to defy the court’s orders later on,” she said.

Even though a full ruling is expected to take years, even an interim ruling ordering Israel to amend its fighting would associate Israel with the accusation of genocide, making it harder for countries that have so far stood by its side, especially in Europe, to continue to do so.

Hanan Lischinsky has a Master’s degree in Middle East & Israel studies from Heidelberg University in Germany, where he spent part of his childhood and youth. He finished High School in Jerusalem and served in the IDF’s Intelligence Corps. Hanan and his wife live near Jerusalem, and he joined ALL ISRAEL NEWS in August 2022.

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