In a few hours from now, by this evening per IST, it is expected that the International Court of Justice (ICJ) will rule on the South African request for provisional measures to stop what it argues is Israel’s ongoing genocide against Palestinians in Gaza. It is a poignant moment: an ex-apartheid country is censuring an aspiring apartheid state against following its footfalls which had brought much human suffering.
The ICJ is often called the ‘UN Court’ — the primary judicial institution of the world body. Its 15 judges come from all parts of the world representing different cultures and political environment, and although it is a highly ‘politicised’ body, it is also, paradoxically, a highly respected and authoritative body.
The recent proceedings at the ICJ have not been understood properly. Make no mistake, the ICJ is not going to decide at this stage whether genocide against Palestinians by Israel actually took place. What has happened is a preliminary encounter in order for the court to determine whether it should issue a preliminary order to preserve the situation in Gaza — precisely, an injunction to freeze the situation to prevent further damage to the Palestinians so that the court can eventually take a decision in the matter some 4 or 5 years down the line.
Meanwhile, genocide has degenerated into a commonplace expression in politics but as far as the ICJ is concerned, it will be guided by the precise definition of that word per the 1948 convention where it is referred to as the ‘destruction’ of a national ethnic or religious group, which is a truly narrow definition, in fact, as it is deemed that the purported destruction must be visible in nature.
Put differently, there has to be physical dimension to the destruction. Of course, that is the basis of the claim made by South Africa in its 84-page petition to the ICJ, which submits the case that the Israeli military operation in Gaza goes beyond the stated purpose of the destruction of Hamas to the annihilation of the 2 million civilian population in the enclave, which has been subjected to hunger, disease and military attack, etc. And South Africa has largely accessed a range of UN reports to make its case. In about 6-8 months from now, South Africa will be called upon to present its evidences.
Israel’s defence, on the other hand, is based on a detailed narrative on the happenings of October 7 attacks by Hamas with a view to substantiate that what the IDF is doing in Gaza is a military operation, and utmost precautions have been taken in accordance with international law to avoid harm to the civilian population. In sum, Israel claimed that it had no intent to destroy the Palestinian people.
Quite obviously, Israel focused on the central issue in a genocide case — namely, whether there was actually an intent to destroy the Palestinian people (ie., which was not incidental or connected to some other purpose.) Of course, Israel had to defend itself from some outrageous statements by Israeli figures too, where it tried to distance itself that these were people not involved in decision-making in Tel Aviv and their viewpoints cannot be attributed to the state of Israel.
The bottom line here is that the ICJ keeps a very high threshold for a state to be held liable for committing genocide. Facts are to be beyond reasonable doubt and full criminal intent needs to be established. But at this preliminary stage, South Africa was not expected to rise to that high standard. Its case at the preliminary stage is merely to establish that there is a plausible case, which the South African team has handled efficiently and without any difficulty.
It is entirely conceivable under the circumstances that the ICJ injunction will accede to South Africa’s request. By the way, the exceptionally hard-hitting statement by the UN Secretary-General António Guterres at the Security Council two days ago cannot be out of sync with the spirit of the times at the ICJ.
What can the ICJ injunction do? In principle, it can ask Israel to stop the bombing of Gaza. How it frames that order becomes important. If the wording is something Israel can learn to live with, a door opens to the pathway leading to the rose garden.
On the contrary, Israel is in a militant mood and a harshly-worded order is sure to be dumped into the dustbin by Prime Minister Benjamin Netanyahu whose political stakes are so high that they are almost existential.
If he is forced to terminate the military operation on the basis of an ICJ ruling, that will inevitably lead to his ouster — and all the unpleasant consequences in the downstream once he is stripped of the immunity from prosecution which he enjoys while in office. He is a tough fighter.
The ICJ ruling comes at a time when the media is awash with reports of a rift between Netanyahu and US president Joe Biden. How far it is a real rift or an act of dissimulation is hard to judge. Biden being an experienced politician who knows what is good for his political career, the probability is that the semblance of a rift with Netanyahu at this point suits him. But, that said, Israel can behave like a spoiled brat and if push comes to shove, Netanyahu won’t hesitate to show Biden the door.
In fact, the high drama of the ICJ ruling will be that it exposes the calculus of the current US policy on the Middle East situation. Hunting with the hounds and running with the hare is not beyond Biden’s politics but the margin of error in this case is narrowing dangerously by the day.
Meanwhile, the big picture is that the Axis of Resistance is shifting gear for a war of attrition which Israel cannot possibly win. The resistance groups are already looking beyond a ceasefire in Gaza towards a much broader agenda, which includes evicting the US troops from Iraq and Syria and bleeding Israel with a thousand cuts. They have no time for a ceasefire.
Ironically, the sensible thing to do will be to listen to the advice given by Russia to create an inclusive Palestinian delegation that includes Hamas. At his press conference in New York on Jan. 24 following the open debate in the Security Council on on ‘The situation in the Middle East, including the Palestinian question,’ Foreign Minister Lavrov spoke like the only adult left in the room. In his words,
“We will strongly advocate for countries from the region, primarily the Arab League member states, to take ownership of the initiative to establish a mediation mechanism… every effort must be made to restore Palestinian unity so that all the existing factions and those working with them from abroad come together and declare that the Palestinian people have reunited to create a solid foundation for the future state. Otherwise, all the possible approaches floated during informal conversations would not be viable. All they seek is to give the impression that something is changing in Gaza without reuniting it with the West Bank as part of a single state while keeping Palestine divided and lacking unity in order to buy more time… Netanyahu’s statement that the creation of the Palestinian state is not on the agenda is a cause for concern for us…
“The first step … must be the restoration of Palestinian unity. They themselves must decide on the principles that will restore their unity. Without the unity of the Palestinian people there will be no foundation for a Palestinian state but only pretexts for keeping Gaza as a separate entity with a special status, where somebody will ensure a security belt and buffer zones, and with the West Bank as another separate entity, where more illegal settlements will be established, thereby casting doubt on the concept of a united Palestinian state. These details must be given close attention.”
Today’s ICJ ruling becomes a defining moment in the chronicle of the Palestine problem. The implementation of the ruling will be tricky but it is one of those momentous occasions as if the conscience of the world community is being put on trial. Therefore, although the ICJ judges reflect the cultural diversity of the world community, they cannot help being independent and impartial.