By: David Kreetsmer (*)
Immediately after the deadly attack carried out by Hamas on October 7, 2023, great sympathy prevailed with Israel and its citizens, at least in the Western world. However, five months after the brutal war — in which, according to the latest reports of the United Nations Office for the Coordination of Humanitarian Affairs (OCHA), some 30,000 Palestinians (about 1.33 percent of Gaza’s population) were killed, about 69,000 were injured, about 75 percent of the population was forced to leave their homes, and about 60% of homes were destroyed or damaged – this sympathy has faded and hostility to Israel expands.
The harsh criticism against Israel is not limited to demonstrations organised by students and other lobby groups, such as academics in the West or port workers in India; they have reached courts in several countries, and of course, to international courts. These legal proceedings could have a significant impact on Israel’s standing and on the ability of Israeli judicial institutions, not just the government, to operate in the international arena; on Israel’s economic growth; and ultimately on its safety as well.
What does South Africa want?
The most prominently publicised legal action to date is South Africa’s lawsuit against Israel at the International Court of Justice in The Hague. Israel is accused of committing acts in violation of the Genocide Convention. The importance of this rare action lies not only in the gravity of the charge against Israel, but in the possibility of forcing it to appear to defend itself in court, because Israel has accepted the jurisdiction of the court to discuss the relevant disputes when interpreting and implementing the Convention against Genocide. Court orders will therefore be binding on Israel, whatever this means both legally and politically. This action differs from two other proceedings in court: the 2004 opinion on the legality of the separation wall in the West Bank, and the proceedings currently underway in the request of the United Nations General Assembly for an opinion on the legitimacy of Israeli practises in the Palestinian territories.
An investigation into South Africa’s accusations against Israel will take years, and most Israeli jurists believe it will not be possible to prove a “special intent” to destroy a group – a condition that the agreement requires to prove genocide has been committed. However, even before the case itself, the court debated South Africa’s request for interim injunctions against Israel, the issuance of which, according to the court’s ruling, is not based on proof of a “special intention” to destroy a group (in whole or in part), but only on the basis of the possibility of violating rights protected by the Convention if the orders were not issued.
On January 26, the court issued its decision. It included six orders against Israel, the most important of which demands that Israel “take immediate and effective measures to enable the provision of basic services and humanitarian assistance, urgently needed to address the difficult living conditions faced by Palestinians in the Gaza Strip.” The court also ruled that Israel must submit a report within a month detailing all the actions it has taken to implement the court’s orders.
Since these six orders are binding on Israel, failure to implement them may have consequences on two levels: legal and political. Under Article 94 of the UN Charter, if Israel does not comply with the orders, South Africa will be able to turn to the UN Security Council, the latter of which will be authorised to decide on the steps to be taken to ensure Israel’s compliance. These measures may include various types of sanctions, including economic sanctions, or a ban on countries supplying them with weapons.
It is true that the U.S. can veto a Security Council resolution, but if I were one of Israel’s decision makers, I wouldn’t be confident it would. President Joe Biden these days is under heavy attack within his party for his support for Israel, and the use of a veto against a decision to ensure compliance with the court order could finally wipe out his (alreally unshining) chances of winning the election.
But even if the US uses a veto, which prevents a binding decision for different countries, it will not prevent them from acting as it decides and in accordance with the resolution that from the beginning has the support of the majority of Security Council member states (and was only dropped because of this veto). If the United States does not exercise the veto, its abstention is enough for the Council’s decision to be binding on all other states, and in such a case, it must be assumed that most of them will abide by the Council’s decision.
In this context, what is happening at the border crossings with Gaza, where protesters prevent aid trucks from entering the Strip without the intervention of the political police of Minister Itamar Ben Gveir, may involve the State of Israel. It is quite clear that the unwillingness of the Israeli authorities (i.e., the police in this case) to ensure the entry of aid into Gaza cannot justify a flagrant violation of the court order (which explicitly states that basic services and humanitarian aid must be provided), and as a result the court can determine that Israel violated the order.
A situation in which different countries assess that Israel does not abide by court orders could severely damage its foreign relations with it. In practice, even without a Security Council resolution on the matter, different countries may later resort to imposing sanctions on Israel, such as cutting diplomatic relations, recalling ambassadors, refraining from trade relations, and refusing to sell weapons or other military equipment. If the court decides that Israel has not complied with the interim orders, it will further exacerbate diplomatic actions against it.
Lawsuits in courts outside the country as well
What is happening in the International Court of Justice may also affect the position of courts in various countries, where lawsuits have been filed against government authorities in an attempt to influence their relations with the State of Israel. Among the strongest examples of this is the recent judgement by the federal court in Northern California. A lawsuit has been filed before her against President Biden and Secretary of State Anthony Blinken demanding that they refrain completely from providing any aid to Israel, in order to prevent “genocidal acts” against Palestinians in Gaza.
The court was forced to dismiss the lawsuit because of a legal precedent that claims related to foreign relations administered by the ruling administration were not subject to prosecution; but the dismissal of the lawsuit did not prevent the judge from expressing his opinion on its merits. Based on the decision of the International Court of Justice on the Interim Orders against Israel, the US judge stated that his decision to dismiss the lawsuit for lack of justice is not the ideal decision, as there is a possibility that acts of genocide will actually take place in Gaza.
Accordingly, the judge “warmly” asked the defendants — the president and secretary of state of the United States — “to reconsider the results of their unconditional support for the military blockade against the Palestinians in Gaza.” It is difficult to think of a harsher communication than a court that had to reject a particular claim because of its inadmissibility to prosecute. President Biden’s critics will certainly use that judgement in their attempt to pressure him to reduce his support for Israel.
The California court is not alone in knocking out the consequences of the war in Gaza on its country’s foreign relations. On February 12, a court in the Netherlands prevented the government from supplying spare parts for Israeli Air Force F-35s, after concluding that there was a high risk of installing spare parts in aircraft that “commit clear violations of the rules of international humanitarian law.” The Dutch government has announced that it will appeal the decision, but as long as the Court of Appeal does not decide otherwise – the Dutch government is prohibited from supplying spare parts stored in its territory to Israel.
On the chain reaction caused by restrictions on settlers
Beyond considering disputes between States that have consented to its competence, the International Court of Justice has the power to grant legal views at the request of the various UN organisations. Following the Palestinians’ appeal in late 2022, the United Nations General Assembly asked the Court to express an opinion on two questions: What are the legal repercussions stemming from the ongoing violation of the right of the Palestinian people to self-determination due to the continuation of the occupation and settlement and additional discriminatory steps (including legislation) in force in the West Bank, as well as due to the annexation of East Jerusalem, which was occupied in 1967, in which the practises of its intention to change its demographic composition, character and status are carried out? How do the aforementioned policies and practises affect the legal status of the occupation, and what are the repercussions of this situation on the part of other countries and the United Nations?
Contrary to the court’s decision in the South African lawsuit, which binds Israel, the court’s legal view will not bind it. However, the court’s jurisprudence within its point of view are those of the higher body competent to interpret international law, and other states may see themselves as obliged to accept them. Thus, if the Court expresses its position that the occupation is illegal, or that Israel’s regime in the West Bank is an apartheid system and that other countries should boycott Israel until this system is terminated – there is no doubt that there are countries that will act according to the Court’s view.
It should be noted that as part of the process of formulating the legal view, 57 countries have submitted arguments to the court, only two of which, the United States and Fiji, have attempted to defend Israel. Some friends of Israel, such as Britain, the Czech Republic and Italy, have said the court should not formulate a position, as that could damage the chances of a political settlement. But even these countries did not find it appropriate to defend Israel’s policy.
In contrast, most of the other countries that participated in this procedure demanded that the court explicitly assert that the occupation is illegal and that Israel must withdraw from the [occupied] areas without conditions. Some have even asked the court to be firm in the existence of an apartheid system. It is difficult to assume that all these countries, which have worked hard and appeared before the court, will ignore their view, should they decide that all states are obliged to act to ensure Israel’s compliance with international law.
In this context, it should be noted that three major Western countries, the United States, Britain and France, have already decided to move on their own, in light of the continued refusal of the Israeli authorities in the West Bank to apply the law against settlers who violently attack Palestinian communities and their properties, and imposed sanctions on settlers in conflict with the law. Other European countries, including Germany and Poland, have also condemned settler violence and hinted that they are considering similar sanctions. The three countries mentioned have imposed sanctions on settlers involved in the violence, but I appreciate that over time, sanctions will also be directed against military or political officials who support their violence, especially if the International Court of Justice upholds this in its view.
The said legal measures have, and will continue to, have a real impact on Israel’s foreign relations, and on the various countries’ dealings with Israelis in general, and with Israeli institutions and bodies in particular. Perhaps Israelis who have for years sarred the cy and unconvincing attitudes that these territories are not occupied and that there is no legal impediment to the establishment of Israeli settlements there, will begin to understand that the courts of other countries of the world, let alone international tribunals, are not in line with the tendencies of their hearts. In this sense, Israel would pay a heavy political price, not only because of its actions in the current war on Gaza, but also for its years of disregard for the binding international law of the occupying power.
Read in Arabic here
This English version is by Apple translation service
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(*) The writer is a professor and honorary professor of international law and public law at the Hebrew University of Jerusalem. His article translated here with some brevity, was published in Hebrew in “Tilem, a platform for a different political dialogue.”